1.Infringement of essential procedural requirements and of the rules of the Treaty, especially Articles 3(b), 4(b), 5 and 53; infringement of the rules of law relating to the application of the Treaty arising from the general principles of the national law of the Member States concerning the burden of proof; infringement of the rules relating to the application of the equalization scheme and especially Decision No 2/57; misuse of powersThe applicant emphasizes that the basic general decisions on equalization are restricted to imposing on the undertakings the obligation to declare the movements of ferrous scrap and have not laid down in addition that of supplying documents in support of these declarations.At the time the applicant complied with that obligation, by addressing to the competent authorities the declarations relating to its consumption of ferrous scrap, wherein were shown the quantities of ‘alloy scrap’ received.This was the time when the High Authority, if it considered it necessary, should have required the undertaking concerned to prove that the disputed ferrous scrap was alloy scrap. The applicant, whilst not disputing the High Authority's right to correct or check undertakings' declarations, does not admit its right to require the production, after several years (in this instance between 11 and. 7 years), of evidence for which it could have asked when the disputed facts were declared, the more so since in absence of such a request undertakings considered that their declarations complied with the requirements prescribed at the time. The High Authority's claim is thus not only contrary to the provisions laid down at the time, but is also vitiated by misuse of powers.The defendant replies that, since in this case the assessments in question relate to a period before 1958, the basic provisions are those of Article 12(1) and Article 16(1) to (4) of Decision No 2/57, which concern the fixing of the amount of contributions owed by each undertaking. These provisions moreover do not specify the procedure or the power whereby the High Authority shall calculate the amount, but are limited to providing that each undertaking under its control shall inform the High Authority of the movements of ferrous scrap and that the High Authority shall notify the undertakings concerned of the result of this calculation.In these circumstances, it is evident that in interpreting these provisions account must be taken of the general principle whereby, in the absence of provisions to the contrary, the grant of a specified power implies the grant of all other powers essential for the proper exercise of that power. It thus follows that the High Authority has the power to make inductive corrections and to dispute the accuracy of the facts notified by the undertaking concerned.Instead of making any fresh provision, Article 2 of Decision No 13/58 only confirms that conclusion, empowering the High Authority inductively to fix the amount of the contribution (cf. also Article 1 of Decision No 14/58). Certainly, the High Authority must always proceed on the basis of exact information; but, unless the undertaking is in a position to prove sufficiently in law that the High Authority's calculation is based on wrong information, or that it actually purchased the declared scrap, the results arrived at by the High Authority must be considered as definitive. All these principles, already recognized by the Court, especially in the Judgment in Case 18/62, have as their logical corollary that it is the undertakings' duty, under the rules in force since the scheme was set up, to assemble valid documents and to retain them as long as may be necessary in order to dispute the amount of the contributions claimed and to prove the exact quantities of ferrous scrap purchased (cf. Judgment in Case 108/63).The applicant replies that it in no way disputes that the High Authority may make all the checks and corrections necessary to determine the equalization charge. It considers however that the High Authority has been dilatory and superficial in its findings, and that it pursued an illegal aim in its choice of the most appropriate methods for determining the equalization charge due by each undertaking: instead of choosing methods which would have given exact results, it preferred to adopt methods which showed higher consumptions of ferrous scrap. This explains, for example, the adoption of the criterion based on the consumption of electricity which had subsequently to give way to that based on the number of actual working days.The High Authority's attitude led it to reject the designation of ‘alloy scrap’ for the tonnages in dispute. Its behaviour reveals its basic preoccupation with maintaining the balance between the credits and debits of the equalization scheme, by the methods most suited to avoid, so far as possible, the amendments necessary to the general budget of the equalization funds which the correction of certain calculations would involve. The contested measure is thus vitiated by misuse of powers.Moreover, according to the defendant's argument on the scope of Articles 12 and 16 of Decision No 2/57, it must be noted that the very fact that these provisions are limited to providing for the undertakings' obligation to supply the High Authority with the information asked for, and that they do not lay down any procedure for implementing the check carried out by the High Authority, gives no proper grounds for concluding that the undertakings were also under an implied obligation to gather up all the necessary documents in advance. If these provisions are flexible with regard to the High Authority, they must also be flexible with regard to the undertakings.The High Authority ought thus to have assumed the accuracy of the applicant's declarations and of the periodic records of the movements of alloy scrap contained in the books of accounts, the more so since the undertaking would certainly not have dared to enter in these books incorrect figures with regard to the tonnage of scrap received, as these tonnages could not be used swiftly, and the accuracy of the figures could have been determined at any time by a check on the stocks.The High Authority's behaviour is even contrary to the rules governing the burden of proof, as it is a fundamental principle both of private law, under which part of the equalization scheme comes, and of public law, that the burden of proof rests on the party which alleges the disputed facts (‘avanza la pretesa’). This principle is subject to exceptions in the sphere of public law, but these exceptions must arise from an express provision and not be created by the administration simply by means of an executive measure.It thus follows that, if undertakings which have not made their declarations are put under an obligation to prove the inaccuracy of the checks carried out by the High Authority, then by the same token it is for the High Authority to prove any inaccuracy in the undertakings' declarations.At a more practical level, it must moreover be explained that the exemption of alloy scrap from the equalization contribution was contemplated from the outset of the equalization scheme. In fact the High Authority by implication gave retroactive effect to Article 10 of Decision No 2/57, which provided for that exemption. This Article was limited to providing for the undertakings' obligation to state the type of scrap thus exempted, and did not require any proof in support of the statement.Only alter Resolution No 17 of 24 April 1958 by the Caisse de Péréquation des Ferrailles Importées (The Imported Ferrous Scrap Equalization Fund, hereinafter referred to as ‘the Fund’) were the undertakings notified that, after 1 May 1958, they must give reasons for classification as alloy scrap in the invoices relating to its purchase. But this resolution can by no means be interpreted as modifying the provisions of Decision No 2/57, considered above, either for past or future transactions.The applicant did not fail after the entry into force of the said resolution, to append to its declarations invoices proving the nature of the alloy scrap. But these documents cannot also be required with regard to the past, because of the physical impossibility of producing them at several years' remove, and of the lack of any legal provision for such an obligation. The High Authority's conduct would thus burden the undertakings unlawfully with the consequences of its own failure to take action.The defendant objects in its rejoinder that the discussion on the burden of proof is misplaced here. On the one hand, it was only where the applicant indicated the content in other metals of the ferrous scrap in dispute that it was possible to consider whether its statements required proof or if they must be presumed correct. On the other hand, if it is admitted, as it was admitted in the Judgment in Case 18/62, that the High Authority may carry out checks by inductive methods, it must ipso facto be concluded that the burden of proof does not rest on it.With regard to the argument that the obligation to justify the nature of the alloy scrap was first provided for the Resolution No 17 of the Fund, the defendant notes that this resolution made no innovations in that field, but simply adopted a practice which has since become general.The defendant contends that levying the equalization contribution comes within the sphere of private law, and furthermore defines its attitude to the submission of misuse of powers, emphasizing that it is not supported by any sound argument, and that it is indeed weakened by some of the arguments on which the applicant relies.
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